What happens if my EB-5 investment will not create jobs?

I would like to invest in real estate. It will be a multifamily house for rent, and my brother and I will manage it. I have enough money for investment ($1.2 million), but we cannot employ 10 persons. Can I still apply for EB-5 permanent residence? Is there any way around the job creation requirement?

No, there is no way around the job creation requirement. Direct investment must create at least 10 full time jobs. You may consider the regional center option where indirect and induced jobs can be counted.

The EB-5 criteria are strict and require that jobs are created. In a direct EB-5 (which you seem to be describing) you will not be successful unless you create at least 10 new direct jobs with your investment. However, there may be a way to avoid this, for instance, by relying on indirect employment in a regional center setting. You should consult an attorney experienced in EB-5 cases before investing any funds in an EB-5 project.

The EB-5 job requirement specifically mandates that you must create 10 jobs or more and you cannot avoid it. If you cannot create 10 jobs, your application will likely be denied. Before proceeding further, talk to an EB-5 attorney and discuss how you can meet the requirement rather than skirting it.

Unfortunately, a crucial and indispensable part of the EB-5 program is the job creation. You must create the 10 jobs, notwithstanding the fact that you have the requisite investment amount. The very purpose of the EB-5 program is for foreign investments, taken together with job creation. There is no way around the job creation requirement if you are proposing a direct investment project. There are other options, however, such as investing into a project that you do not administer yourself.

No. You must hire 10 Americans. However, if you build your project inside an already approved regional center, the 10 jobs can be "indirect" ones (i.e., jobs created by your project in the community such as taxicab drivers; restaurant help; store employees; etc.). You need to consult an EB-5 attorney to discuss this.

Your investment immigration attorney will explain to you that the creation of 10 jobs is a critical part of EB-5. If the business entity does not create 10 jobs, you face the possibility of your EB-5 application being denied.

Your plan would not seem to work and you will not be approved based on the inability to create 10 direct jobs. If you invested in a regional center project, the job creation method would be different in that you can rely on indirect job creation (as forecasted by a reasonable economic impact study). Otherwise, for direct jobs, the only other option for direct EB-5 business is if you were to purchase a "troubled business" and maintained the existing jobs at the business (no less than 10 jobs saved, otherwise some new jobs would be required).

John J Downey

Immigration Attorney

Answered onMarch 28, 2016

Sorry, the statute is named employment creation visa. No way around job creation.

This will not work. You need to invest in an entity that generates jobs. It is the basis for the law!

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